Last week, the Supreme Court announced that I don’t have to talk to my client’s anymore!*
* Anytime you see an asterisk (*) in this post, it means sarcasm. That means the title, too. Double asterisks (**) will mean footnotes.
It’s going to save all of us habeas litigators so much time and resources!* No more travel to visit clients!* No more letter writing!* No more phone calls!*
In Ryan v. Gonzales, the Supreme Court held that a petitioner who is incompetent has no right to a stay of his habeas case during the period that he is incompetent. The Ninth Circuit had concluded that a capital habeas petitioner’s statutory right to counsel under 28 U.S.C. § 3599(a)(2) meant that he had to be competent so that he could communicate with his attorney and effectuate that relationship.**
The Supreme Court said that that's just crazy talk. It stated that a statutory right to counsel in a habeas case did not give the habeas petitioner any right to provide input into the habeas litigation. Justice Thomas, speaking for a unanimous court, stated, “Attorneys are quite capable of reviewing the state-court record, identifying legal errors, and marshaling relevant arguments, even without their clients’ assistance.”
** The Sixth Circuit had provided a separate statutory justification for finding that incompetency compelled a stay. The Court dismissed it pretty summarily and it’s not really worth mentioning.
So there it is: once counsel is assigned to a case, the habeas case goes on with or without the petitioner. Who cares if the habeas petitioner has no capability of comprehending what’s going on? It’s not his case anymore. It’s the lawyer’s. Just because the petitioner has to face the consequences of the result does not mean he has the right to be competent to hear it.
I really have one word for this: cold. Ok, maybe two words: breathtakingly cold. I can even break out the uncommon sense meter on this one: try to explain to a layperson what this means: you are in prison on death row and you are challenging the conviction, but you don’t even have to be, essentially, a sentient human being while it all plays out in court. Even more, your attorney gets to litigate the case while you are away with absolutely no input from you. Cold and contrary to common sense.
Of course, the result is not particularly surprising. In my mind (as I have discussed before), it flows from Jones v. Barnes (even though, surprisingly, that decision makes no appearance in Gonzales). A habeas case is record-based, like a direct appeal. So the attorney is the one who makes the decisions. Input from client would not technically be necessary.
That’s logically fine. But here is where the absence of a true liberal voice can be seen in the current Supreme Court. Justices Brennan and Marshall dissented in Jones (and Justice Blackmun agreed with Brennan and Marshall overall, but concurred in the result). Those two (+1) judges would not have found the Ninth Circuit’s reasoning to be crazy talk. Having counsel assigned to a case, even a record-based type of situation, does not mean that the defendant disappears from the case. In their eyes, the function of an assigned attorney (at least under the Sixth Amendment) should be “to protect the dignity and autonomy of” the defendant. Those judges considered these values “central to many constitutional rights,” including those under the Sixth Amendment. The right to counsel is not an “all-or-nothing right.” Counsel should be assisting the defendant, rather than doing everything on his or her own. While this view is not particularly practical, it certainly is far more empathetic and dignified.
It’s safe to say that a true liberal judge would have seen similar concerns in Gonzales. It’s pretty depressing that not a single judge would voice any of these concerns.
Of course, no habeas practitioner would want to proceed like this. It’s both unethical and unprofessional to litigate a habeas case without input from the client. It really seems a bit shocking to me that the Supreme Court has now condoned such a practice, at least when the client is incompetent. The Court’s (apparently unanimous) disdain of habeas has now run so deep that it is willing to sacrifice some of the dignity of the legal profession** in furtherance of that contempt.
** [insert joke here] - but, against all odds, I still believe in the dignity of the profession
I guess on the brightside the Court didn’t completely prevent federal judges from granting a stay based on incompetency. Federal judges still have the discretion to do it. But the Court indicated that this discretion really should be guided by the judges’ “docket[ ]” concerns. The Court did not suggest in any way that a judge should consider whether or not she felt comfortable with forcing a case to go forward while the petitioner has no current understanding of what’s going on. In fact, the Court specifically precluded a stay in the extreme situation where the petitioner may never have any understanding of what’s going. And just when you thought the Court couldn’t get any colder . . .